Netflix, Voi Siete Stronzi

Netflix announced that it is going to take action to prevent people from logging in through proxy servers.

"In coming weeks, those using proxies and unblockers will only be able to access the service in the country where they currently are," David Fullagar, Netflix's VP of content delivery architecture, wrote in a blog post. "We are confident this change won’t impact members not using proxies. Source

I understand that Netflix has a problem here. Intellectual property rights are territorial in nature, and thus a movie company can sell the U.S. distribution rights to a film separately from the French distribution rights. I agree that content producers have a right to be paid for their efforts. But, situations like this make me understand why people pirate content. It really seems like a misuse of copyright.

I frequently log in to my Netflix account from an Italian VPN. I like to watch movies in Italian. I am teaching my kids Italian, and I like them to watch their cartoons in Italian. The same cartoons that are on my Netflix USA account are also available on Netflix Italy. But, for some reason, Netflix does not give me the option to change the language to Italian, as it does if I log in through an IP address in Europe. Netflix could easily offer the same shows with the Italian language option in the USA, but for some reason, they would rather not.

Zone shifting is a legitimate use. I can understand that Netflix would rather not let me access "Better Call Saul," from my proxy server. They don't have U.S. distribution rights to it yet, so technically, if I were to access Better Call Saul on that proxy server, I'm violating someone's rights.

I have a completely untested legal theory here, that "region shifting" should be considered to be "fair use." Lets look at it this way, what if someone is in the United States, but they only speak French. Should they simply be out of luck when it comes to watching movies, if the providers refuse to serve up the movies in French? I could forgive them if they didn't make the movies in French, but if you log in to Netflix from a French IP address, you get the movies in French if you want them — including with French subtitles.

The greatest threat to content producers' profits comes from torrents. When a movie gets into the torrent stream, all bets are off, and all profits are gone. Sure, some people torrent because they're too cheap to pay for the content. But, a situation like this makes it pretty clear that the copyright owners are creating a hell of a legitimate argument that torrenting, to watch in your preferred language, is a legitimate activity.

I am not sure if anyone has ever been sued for torrenting a film in order to language-shift, but if they did, I'd be inclined to defend such a suit pro bono.

Really? You've found one where the alternate language is French? Every time I have to sit on hold after listening to a damn robot give me options that don't actually match what I need the only other language option is "Spanish."

The situation is not quite as dire as you think, as it will be impossible to really enforce

“Our ambition is to do global licensing and global originals, so that over maybe the next five, 10, 20 years, it’ll become more and more similar until it’s not different,” Netflix chief product officer Neil Hunt explained in an interview at the CES 2016 convention in Las Vegas. “We don’t buy only for Canada; we’re looking … for all territories; buying a singular territory is not very interesting any more.”

In the meantime, Canadian media executives, particularly from Bell, have in the past called consumer use of VPNs “stealing,” and allege that Netflix isn’t doing enough to stop it. Briefing books released by the new federal Liberal government show the issue of copyright and VPNs has been put on the radar of Heritage Minister Mélanie Joly.

“We do apply industry standard technologies to limit the use of proxies,” Mr. Hunt says. “Since the goal of the proxy guys is to hide the source it’s not obvious how to make that work well. It’s likely to always be a cat-and-mouse game. [We] continue to rely on blacklists of VPN exit points maintained by companies that make it their job. Once [VPN providers] are on the blacklist, it’s trivial for them to move to a new IP address and evade.”

The company does claim to have a salutary effect on more overt forms of piracy. At the Netflix keynote last week, Mr. Sarandos said that the use of BitTorrent – a popular source of copyright-evading movie and television downloads – went down 14 per cent in Australia after Netflix officially launched in the spring of 2015. Unofficially, reports suggest as many as 200,000 Australians had already been accessing Netflix via VPN; there are more than a million subscribers now. Canada is estimated to have about four million subscribers.

Not only is the issue one they would avoid if they had any choice, their 'drm' is like Steam's, which is to say the bare minimum to cover their ass where the publishers are concerned and unlikely to do more than produce minor outages of VPNs.

Convenience trumps piracy for most people (not all, but enough to matter). But these media companies are strangely resistant to the idea of making it easy for consumers to consume their content and not pirate.

1) I travel from time to time. What if I log into my account while in a foreign country? If my account is in good standing, I should be able to use the service for which I have paid. PERIOD.

2) While I completely agree with the idea that people should be paid for their works — many of my friends are artists, writers, and actors — I would so dearly like those who work in contracts for distribution of media to ditch the 18th century and join the rest of the world here in the 21st where we have devices that allow for the transmission of contents at the speed of light.

This idea of nation by nation, region by region, releases is antiquated bullshit that dates from the times when physical media had to make the journey from point A to point B. It needs to go bye-bye. Now.

3) There's also an intellectual freedom issue at play. World-wide streaming and downloads have allowed millions of people to access the media their government has officially banned. These policies about proxies kneecap this effort to get diverse content to the people who desperately need it the most.

Should this come to pass, Netflix (Canada) will lose this long-time customer. I am a faithful, paid subscriber but do not reside in Canada. I was willing to be a paid subscriber to HULU (US) as well, but that got blocked. I hear all these complaints about what content providers describe as 'theft' yet so many potential customers are left with their cash in hand waving in the breeze because no one will take it. I have always considered it an absolute to pay my own way. If these companies, don't want my patronage, I will likely go away — somewhat mad. Then again, maybe more illicit ways will become more and more appealing.

I can understand that Netflix would rather not let me access "Better Call Saul," from my proxy server. They don't have U.S. distribution rights to it yet, so technically, if I were to access Better Call Saul on that proxy server, I'm violating someone's rights.

While I understand the argument being made, this is, I believe, also why languages are restricted. After all, would not the alternate performances (the different VA tracks) require themselves to be licensed as well?

One could make an argument that maybe Netflix should have wrote their NA contracts better to include them, but one could also make the argument that European VA agencies were looking for too much to license their work out of the country, and/or Netflix would be unlikely to make enough back from offering that as an option elsewhere to make it worthwhile.

Regardless, I agree that it's silly that they don't offer all the language options everywhere, especially since they have that data. I may understand WHY that's potentially the case, but that doesn't change that I think it's ridiculous.

They don't have U.S. distribution rights to it yet, so technically, if I were to access Better Call Saul on that proxy server, I'm violating someone's rights.

Hm. And yet…

I have a completely untested legal theory here, that "region shifting" should be considered to be "fair use."

These kind of legal contortions may strain your back, but no doubt they're less painful than either a) living with the minor inconvenience of not having exactly what you want or b) admitting to yourself that you're stealing content the copyright holders don't want to sell you.

Too many people appear to be blaming Netflix for this. Netflix is against against a wall. In order to gain access to content – you must play by the content owners rules. And those rules are all over the place and frequently contradictory.

I would argue that torrents aren't any real threat. Torrents are easy to track and block. There are dozens of other delivery mechanisms for the exchange of pirated content. But to your larger point – once its out … its out.

Couple notes as a former Netflix employee who dealt with content issues.

1. The language treatments themselves are separate rights than the video. Getting an Italian dub for the US costs in addition to the price they pay for it to stream in regions that speak Italian (voice over artists gotta get paid). They aren't hiding it from you just because they hate Italophiles, they aren't purchasing it because they are an economy service and next to no users in the US speak Italian, so why spend hundreds of thousands of dollars for no gain?

2. For those of you wondering about visiting foreign countries with your Netflix: the content you can access changes depending on your physical location based on your IP address. If you are in Germany then you see the German content library. This is why the proxies work.

3. As far as them cracking down on it . . ..meh . . .yeah, they put some software out to look for cheaters, but they'll never actually go all in to block people using proxies. It's just too much work versus no gain and very little potential punishment they receive for people using the proxy. They put out press releases every year or so about it just as due diligence and to scare the 'curious but not already pirating' customers away. Consider that press release as one gigantic wink at your italian cartoon watching.

I have a completely untested legal theory here, that "region shifting" should be considered to be "fair use." Lets look at it this way, what if someone is in the United States, but they only speak French. Should they simply be out of luck when it comes to watching movies, if the providers refuse to serve up the movies in French?

What is this, SJW-speak posing as a legal theory? A business declines to offer French language movies as part of its subscription service in some geographical areas, so anyone and everyone should be entitled to violate the law because… fairness. Seriously, have you never been told that life isn't always fair?

Although I am not above violating copyright law when it suits my interest, I don't seek to dress it up as one of my fundamental rights.

The greatest threat to content producers' profits comes from torrents. When a movie gets into the torrent stream, all bets are off, and all profits are gone.

Well, no, that's demonstrably not true; Game of Thrones is the most-torrented show in the world, and it quite clearly continues to be profitable despite that.

I think you do have a point — that if you have to grab a torrent to get an Italian-language version of something, then the publisher gets none of your money for it, whereas if you view it legally on Netflix, the publisher gets some of your money for it. And that, for that reason, it is clearly in the publisher's interest to provide you with the product you want rather than put you in the position of seeking it through some other means.

But that torrent's already out there, whether you download it or not. The studio isn't losing money because that torrent exists, it's losing money because it hasn't provided you with a better alternative.

Every movie gets torrented. Some movies are still profitable. Therefore, it's clearly not accurate to say "When a movie gets into the torrent stream, […] all profits are gone." How much money publishers actually lose to copyright infringement is debatable, but it is clearly less than 100%.

(And that's without getting into special cases, such as Humble Bundle allowing you to buy content and then download it as a torrent, or, say, me downloading a torrent of a game or album I bought years ago because the disc is too scratched to work anymore. Or, hell, because I don't feel like digging through my closet to find out where the hell I left that CD. The end result of me ripping a CD myself or me grabbing a torrent that somebody else already ripped is the same: I paid for the album once on physical media; I did not pay for it a second time as a digital download.)

There are plenty of other cases similar to the one you're talking about, where publishers, by not providing the easy and legal means to get something, are driving customers to other, less-legal means, and losing any chance at making any profit in the process. Until 2014, there was no legal way to buy the original 1966 Batman TV series; Warner, Fox, and the other rightsholders couldn't agree on how to split up the money, so they made the baffling decision that none of them would make any money at all, and instead everybody who wanted to watch it could just go pull it up on YouTube and not give them anything for it. Once it finally came out on DVD and Blu-Ray, it sold pretty well, though I have to guess that if it had been released ten years sooner, when DVD sales were at their peak, it would have sold a lot better.

There are lots of works that are out of print, too. As far as I know, the Goldeneye game for the Nintendo 64 has never been rereleased; your only options to play it are to buy it used and play it on authentic Nintendo 64 hardware, or to download it and play it on an emulator.

I would love to be able to buy the 2001: A Space Odyssey comic book series by Jack Kirby, but it's long out-of-print, and because of the cost of the license, it's unlikely it will ever be reprinted again. I could buy single issues on eBay, or I could just grab the whole thing off BitTorrent. And so on.

Goddam! Some big company won't spend $10 million programming a complex feature so that one (1) customer can use their service in a peculiar way, thus putting at risk the revenue stream from that one (1) customer. The fools!

I still feel Algebra 2 should be removed from the mandatory high school curriculum to be replaced with Economics 1.

Convenience trumps piracy for most people (not all, but enough to matter). But these media companies are strangely resistant to the idea of making it easy for consumers to consume their content and not pirate.

I had a Netflix subscription for several months. Then cancelled it for torrenting. Pretty much nothing I wanted to see was ever available online – only through delivery and why was I going to wait several days (including a trip to the post office as we don't get home delivery from USPS here) when I could be watching it inside 2 hours?

@Socinus: My naive assumption would have been if the market for something in a region is small, the cost of licensing it for that region should also be small. After all, the marginal cost to the content owner is almost zero, and some revenue for them is better than no revenue. Doesn't work that way though, eh?

@Carl Pham: The feature is already there — you can see it on some (but not many) shows. It's just the content that's missing.

I think the T mobile thing is mainly just a botched roll out. When the first apps for mobile devices hit it was still common for people to have unlimited data so providers were definitely throttling any way they could, then as unlimited data plans phased out they saw video as a great way to exploit unsophisticated users who couldn't afford home internet- a shamefully large amount of Americans. At this point in the game it looks most like they were trying to do a customer friendly change and just didn't think it through/erred on the implement.

Translations are considered derivative works, requiring permission from the original copyright holder but being eligible for copyright as separate works. Unless the copyright holder on the original work licenses a translation back from its translator (e.g., as part of their payment for allowing the translation in the first place), then the copyright holder for the original has no legal standing to use the translation.* This keeps them from pirating the translation and refusing to pay the translator for their efforts, which has (sadly) actually happened at times; thus, I think that it's a reasonable measure for the protection of translators.

*Except for work-for-hire situations, but regional sublicenses are generally not work-for-hire situations with respect to the original work's copyright holder.

That being said, I'm all for being able to pay for an Italian Netflix account separate from your U.S. one and watching that through a proxy from the U.S.; the appropriate set of rightsholders is getting paid for that, just as if you bought an Italian DVD off of Amazon.it and had it shipped to the U.S., so what should they care where you live? This is yet another example of how digital media licensing screws up a copyright law designed for a world of physical media purchases.

After reading Marc's piece, my thoughts were pretty shitty and ran similar to yours. But then I started thinking about the VCR and its history.

While not exactly analogous, I see the parallel thusly:
1) Content holder chooses to make content available in a certain way
2) Consumer doesn't want to conform to holder's offering
3) Consumer uses technology to get the content in an alternate way but does not add an extra burden to the holder

With a VCR, you are "time-shifting" the broadcast. With a proxy, you are "region-shifting" your account and gaining access to a different set of content you are already entitled to–and critically, Netflix isn't forced to do anything extra to make this work.

I'm still not really sure I buy that line of reasoning, but it might not be as crazy as I initially thought.

I am not a lawyer, nor have I bothered to read the relevant laws, so this is totally off the hip, but my guess is that existing law, especially the DMCA, would result in a ruling in favor of the rights holders, and not of the streamers.

Translations are considered derivative works, requiring permission from the original copyright holder but being eligible for copyright as separate works.

I think, legally speaking, this is the heart of the matter. If a translation hasn't been released to you, I haven't seen any legal basis for you to access that translation. Having the rights to (or owning) an English copy of a book does not legally entitle you to access an Italian translation of it.

And of course Netflix, being a private company, can block whatever ISPs they like unless they've somehow managed to violate the terms of their contract (so I guess if they banned all of Australia there would be lawsuits in the works)

Maybe for you all in America, the rights to the translation are the heart of the issue. However, for those of us abroad, we can be in the odd situation where the dub is the only licensed stream available! Region-shifting can possibly be the only way to get the original English audio track. In this case the derivative work argument falls apart.

Knowing how entertainment industry IP owners tend to act (thuggishly) I can only see this as Netflix covering their arses.

On the technical front this is actually an interesting quandary. They are essentially broadcasting across national boundaries, so how can they tell where their customers are coming from? The simple way is to pick up the IP address, hence the VPN issue, but I am surprised that they don't have some sort of check related to the customer's account and only allow streaming of the content that they are registered to see (US content to US customers wherever in the world they are calling from). Implementing this will be expensive as address verification would be required, not just requester IP.

Actually, what needs to be addressed is whether customer's home location or current location decides what content they can receive.

This is definitely a case of the technology advancing faster than then legal implications that need to be resolved!

It's a service. It spells out the rules, and these really aren't like some of those shrink-wrap terms (ie: you must go to arbitration with us, rather than a court, and we choose the arbitrator, and we automatically win). Given the state of IP, it really is pretty reasonable what they do. Don't like it? Don't watch. Write your legislator to get the law changed. Make video region-ing illegal. Return to service. Watch once again.

I hate it when various companies try to stop the spread of technology X because it will ruin their business model. But by the same token, I hate it when people use the existence of technology X as an excuse to illegally violate a company's business model. Theft doesn't suddenly become legal, let alone moral, simply because you don't like what you're able to purchase normally. You MIGHT have a case if theft was the only thing keeping you alive (ie: is it moral to steal bread? Or a warm coat?) But videos? Good luck convincing somebody that you just can't continue to live unless you have rapid access to a certain selection of videos in a language of your choice.

Some have pointed out that translations are substantively different works and are therefore covered by different/additional licenses. I agree, but if Mark physically traveled to Italy he'd be entitled to watch the Italian version under the terms of his existing account.

Brian, that's where I am a bit confused. Mark, travelling to Italy, will have an Italian location but be registered with a US Netflix account and US credit card. With VPNs and similar routing software Netflix cannot absolutely guarantee that you are calling in from your advertised location. Shutting down on known VPN providers will help here, but it's a fun technical issue.

Going by the OP, Netflix runs by physical location over registered account address, but are essentially unable to enforce it as of now. I wonder whether there's a threatening letter from the MPAA's lawyers sitting on a desk at Netflix HQ claiming as much? I wouldn't be surprised.

Is there any reason why Netflix checks IP instead of, at the moment of registration, asking the customer to specify from which country he wants the service? (So e.g. Mark should be able to declare that he wants to see the Italian content instead of the USA content)?

Location, location, location.
I think that the rules that Netflix is expected to enforce assume that advertising will be sent along with the content. No advertiser wants to spend good money to buy eyeballs that are half a world away from places the product is sold.

I'm from a country where torrenting is easy. Little copyright enforcement, great internet speeds, and more than acceptable, socially. It's one of the countries which got into the recent Netflix expansion.

Their payment plans are very okay: prices are basically the same as the US version. Except that they offer about 1/3 of the content available to US subscribers. They don't even offer their all of their own shows. House of Cards, for example, is missing. It's probably because they have a distribution deal with a local station. That airs it after midnight every other Wednesday or whatever. And is still showing season 1. So why am I paying the same price?* The obvious solution is switching regions via VPN.

I think creators and artists deserve to be paid. I want to pay them. I want to pay them more directly than watching TV because they manage to put 90 minute movies into 120 minute air slots with commercials.

But torrenting is easy. It's convenient. And it's a habit. If Netflix wants to be profitable in countries where torrenting is most popular they have to break that habit. Which means they have to offer something of similar quality and convenience. In my opinion, they've just shot themselves in the foot with this announcement.

Abolishing staggered releases and region locks is the fastest way for the copyright industry to reduce piracy. Although I really don't buy that piracy is destroying their profits. If that were true, media companies would be going bust not boasting box office records.

*I won't get into the gap between income levels between the two countries.

Netflix, being a private company, can block whatever ISPs they like unless they've somehow managed to violate the terms of their contract (so I guess if they banned all of Australia there would be lawsuits in the works)

Maybe. But (even aside from VPNs) IP number is not necessarily a reliable indicator of country, blocks of numbers are bought and sold. Which is how a "UK Department of Work and Pensions" IP address came to be used by ISIS. Also, if Netflix did not spell out this restriction before taking my money, and I reasonably believe I should be able to use VPN (which I normally do) or not be stripped of my purchase when I leave the country, isn't Netflix guilty of at the very least, breach of contract, if not theft?

@Esk:
You may not realize this, but the practicality of what you are saying (even if there is law on their side) holds true even in the US. Most people don't torrent because they want it for free, they torrent because the torrent is more convenient then paying.

While only anecdotal, as the ease of access for legitimate services (iTunes, Amazon Prime, Netflix, Hulu) has increased, the number of people I know who are pirating decreases. The problem is, every time you put up an impediment, you are going to have a percentage of those people saying "Fuck it, the torrent's easier." Legally that may be wrong, but it's the practical reality.

@eak, @Esk: I don't have a firm grounding in non-U.S. copyright law, which is why I can only address the U.S. perspective, but your grievances speak for themselves. As for me, an avid consumer of non-U.S. media, I have occasionally encountered similar situations.

In addition to the point that the translations have their own license issues, there are not insignificant costs in hosting the actual content in-country. Netflix probably would not be able to deliver the bufferless loading speeds that are important to its business model if some of the content had to be pulled from across the ocean. The only fix for that is hosting in-country. Sub-titles are one thing, but hosting copies of alternative audio tracks for each and every supported language for every video with such support, locally in every region, when the potential audience for minority versions of that content is so small, probably doesn't work economically.

If I understood correctly what you meant, it should be either
"parli un buon italiano" = "speaks good Italian" or, more common,
"parli (molto) bene l'Italiano" = "speaks Italian (very) well".
The words order can be changed, and the article "l'" is optional.

As I write on TeleRead, the argument that people should have a right to torrent stuff in a language they prefer actually makes me chuckle a little, because of my background as a fan of both Japanese animation and Hong Kong cinema. Some anime companies, such as Streamline, only released anime in dubbed form, and Miramax has a bad habit of releasing Jackie Chan movies with bad dubs and terrible new soundtracks, with no original language option available. Should fans who don’t speak Japanese or Chinese but would nonetheless rather see these movies in those languages rather than suffer a cheesy English dub also have the right to torrent them if they’re not legally available?

It's long past time for content providers (and the Law) to abandon their luddite view of their business. It's no longer a physical medium world. Anything popular will get copied and given away. But there is good news: artists still get paid! Take, for example, the recent Star Wars movie. Torrent copies were available the same day (or before?) the official release. So the poor benighted movies makers got only $1.7B.

Trying to enforce copyright on an unwilling world hurts people, but hardly dents the so-called piracy. So, adopt a business model that takes account of the world you live in! If Disney had made some version of its movie available on-line for $1 (or "pay what you will"), then they would have undercut the pirates, made friends, and some small change as well.

Unfortunately, it's still more lucrative for content owners to charge a whole bunch of little fees for licensing regional rights to their content to a little chunk here, a little chunk there, than it is to charge one fee for worldwide distribution. Those little fees can add up to a lot more than that one big fee ever could. As long as that remains true, the incentive to license it only to parts of the world and restrict other parts from accessing it is going to remain in effect as well.

This is just another echo of a war against consumers that has been going on a long time. Region coding of DVDs and blu-rays are part of the same battle. I refuse to believe that I am hurting anyone by wanting to see a film from the country where I grew up, especially if it is for sale there and I am willing to pay for it. I have had content blocked on the web just because have languages that I read enabled on my browser. If you were in the US during the opening ceremonies of the London Olympics, you were only permitted to see an edited version on TV, and were blocked from watching it on the internet if you had a US IP address. I have never minded paying for content, but I will always resist when someone tells me that I just do not get to see this show or that film, because it will not be released in my country, in any form.

Would a VPN be acting like Aereo from ABC v. Aereo? Would it be possible that Netflix could say that the only thing coming from a server is copyrighted content, and retransmission from that server is a violation of a copyright?

I don't know enough about Time Shifting vs. Place Shifting case law as fair use, but DRM for sure negates the need for copyright law at all – both the bad and the good.

I have a US Netflix account because I lived in the US. I recently moved to Germany. I am trying very hard, and failing, to figure out the point of stopping me watching US content that I pay for in US dollars with a US credit card simply because my physical location changed.

I thought copyright law was all about who owns content, not an exercise in geography.

@Dan Weber
Let's not pretend that copyright enforcement's not a regulatory activity. Despite the legal term-of-art "IP", your thoughts aren't property, and copyright infringement, though illegal, isn't theft. Copyright is actually a "common good" type project, where we all decide it's in our collective best interest to promote innovation and creativity in the arts by placing regulatory restrictions on the sale of products resulting from these activities. You might expect that libertarians would decry such government intrusion on the free exchange of ideas. It somehow is never the case though.

The problem the copyright holders have here is that the regional restrictions make no sense to the end user.

If I go to France, I am legally allowed to see these shows. But why? Is copyright holder gaining an extra viewer by my going to France? Where is the loss if I decide to sit in my flat? It makes even less use in Europe. I could be walking distance from France, yet not able to watch their Netflix shows.

These restrictions simply don't make sense when the world is so interconnected.

I wonder if there has ever been a piracy case defended on the ground that the copyright holder does not make the material available?

Probably not. Copyright is what's known as a "negative right", the right to prevent actions from being taken. The owner has the authority to prevent other people from publishing the work in question. The owner has no obligation to publish the work in order to maintain the copyright. I am curious how the lack of publication (or plans of publication) would affect the violator's liability for civil damages. (I'm not a lawyer, but I did recently take a business class that included an introduction to IP law.)

@Nick

Would a VPN be acting like Aereo from ABC v. Aereo? Would it be possible that Netflix could say that the only thing coming from a server is copyrighted content, and retransmission from that server is a violation of a copyright?

Pretty much anything you see over the internet has been relayed multiple times. It would be difficult to prohibit the use of (for example) VPNs without accidentally prohibiting the use of some things that are not VPNs or allowing the use of VPNs that operate on a slightly different principle.

@HeySkipper

I thought copyright law was all about who owns content, not an exercise in geography.

It's about who is permitted to publish content, and in what way, and in what volume, and in what location. It would certainly be possible to license a work for universal distribution, but hardly any companies actually have global distribution channels. Licenses are chopped up geographically partly to keep the prices manageable for local publishers. (At least, that's partly how I understand it to work in the video game industry.)

The owner has no obligation to publish the work in order to maintain the copyright.

Actually, I believe that an owner must show continuing use or development of an IP when applying for extensions, and there may be a provision that allows challenges on the basis of non-use. In theory, these rules exist so that a business cannot simply 'squat' on an IP. In practice, such hurdles are set very low, and a business that truly wants to squat on an IP has only to go through the motions of using it or selling it for revenue.

I agree with Marc. Now that digital media is global, the right to access and consume it trumps the historical need for geographical distribution. Not for free, but not with artificial barriers to trade. If my mother-in-law buys and sends me a German DVD for my child, why does it have zones and I need to buy a second DVD player to watch it. I bet the industry would prefer not to let me even set the zones on the player.

We've also had the same problem as Marc with a German online kids show streaming service: the mother-in-law can pay for the subscription, but then we can't access the shows they advertised. Their problem is they detect our IP location when we want to watch, but not when they advertised to us (their main website).

Corporations are lobbying for and receiving international agreements that abolish trade barriers and geographical protectionism, they can't have it both ways. With more and more international families and shared culture across borders, it's time to reform these antiquated protections.

This is one aspect that is kind of irrelevant. For Netflix to work it needs to run on a CDN (Content Delivery Network). This is basically a server infrastructure that is optimised to allow media to be pushed out as fast as possible. Depending on the target nation's web infrastructure, this may or may not need a presence in that nation, although it would probably be efficient for Netflix to have a portal (the web site or application that the users communicate with) and some sort of caching for content (high download speed & availability) as close to the country's backbone as possible.

Assuming that Netflix run on a single global CDN – and they'd be stupid not to, in IT you want solutions that scale as opposed to lots of individual ones as they're much easier to manage – a movie or show can be stored centrally once (per language) and pushed down to the local market caches on demand. Size will be a few GB a pop. The price of storage is relatively low so having a series translated into a dozen languages on a disk is trivial. Each individual show/movie will be tagged with an "available to" tag listing markets that are licensed to see it, along with other metadata for user searching, and you're sorted. The portal detects what market you are in by requesting IP and will only present shows that are tagged as available to the user.

It really is only the licensing that stops all items from being available everywhere. The past few years has seen cloud (online 3rd-party servers supplied in such a way that you don't know or care where they are physically located) services and CDNs grow to such an extent that Netflix storage requirements are not trivial, but certainly easily catered for.

IANAL, obviously, but am a corporate IT bod in a large media company. My point is that there is no technological reason for Netflix to prevent content from being seen anywhere.

Of course it's a regulatory activity, just like stopping me from killing my neighbor so I can have his house and wife is a regulatory activity.

Theft, murder and rape quite clearly infringe on the person and the property of someone else. I'm not a libertarian, but I've never met one who didn't view those things as sacrosanct and the protection of such the (only) proper role of government. Regulation, generally understood, is interference with some kind of economic activity for some presumed common benefit or to rectify some externality. IP is not actually property. Infringing copyright is not actually theft. (If I copy something of yours, I have, by definition, not deprived you of the use of it.) It may or may not deprive someone of some putative economic benefit they could glean from the protected sale of the fruits of their creativity.

I think copyright is a good thing, but it's pretty clear that it is far too strongly enforced currently. The more free market solution would be to dial back protections (reduce the number of categories of protected ideas, reduce the length of copyright terms, reduce the penalties for infringement, etc) until creative output starts to drop below an acceptable level, whatever that is. We're nowhere near that yet, as attested by every singer-songwriter who is willing to sleep on their friends' couches well into their 4th decade and collect $50 + two free drinks per night at the local pub.

Given how easily most content can be reproduced and transmitted with modern technology, I am not certain that the current system of content creators separating content by geographical area really makes sense now.

But given that it is, I am not certain that using a VPN in order to gain access to content outside of your physical region would qualify as fair use. Netflix (under intense pressure from certain content producers) is only providing some content to certain regions. By using VPNs in this way, you are accessing content that was not authorized for your region. If we look at the four factors, it seems to me that most of them would go against this use being fair. Though, as Nimmer points out in his article "Fairest of them All" and Other Fairy Tales of Fair Use, a good lawyer or judge should be able to argue both sides of just about any fair use factor.

But to go through them anyway, the "purpose and character of the use" here may be private, but it is still using commercially available material for precisely the type of entertainment use it is intended for. It is certainly not trasnformative in the way discussed in Campbell v. Acuff Rose Music talked about. The nature of the work is a copyrighted entertainment piece licensed commercially and still in active distribution. The amount used will be all of it. Even in effect of the market value, it impacts how such work is licensed and whether the dubbed version could then be licensed in the US market. I know there are counterarguments to each of those factors, but from my point of view they all seem to weigh against the use of VPNs for this purpose being fair.

Incidentally, Prof Marketa Trimble has a discussion of the legal issues of VPN use and evading geolocation that was published by the NLJ.

From a legal standpoint, are translated subtitles and/or dubbed voiceovers considered separate creative works? I am nothing even remotely resembling a lawyer, but I have seen an article describing how elaborate and work-intensive the French voice acting industry is, in particular. There is a lot of creative work done to develop alternate-language scripts that maintain similar articulation of the mouth, duration of speech, etc., to the original script. Similarly, subtitles can take significant creative license when translating idioms and so forth.

I am curious as to whether those, particularly separate audio tracks, are licensed separately from the original, English-speaking content of a show. That might explain why Italian subs/voiceovers are unavailable; I'm sure the cost of such a license is negligible compared to the video and original audio track, and it's somewhat of a tangent from the fair use considerations, but those licenses would probably be subject to the same cost-benefit analysis as anything else when deciding what to offer in each territory.

Here is my thoughts: We all know that copy-written stuff is just like regular stuff so downloading a car is exactly like stealing a car. We've seen the ad. Now suppose I wanted a car they only sold in the U.S. when I lived in Canada. If I torrented this car that would be stealing. But if I bought this car in America and had it shipped to Canada I wouldn't be stealing. So if I download a Netflix and have it shipped to Canada its the same sort of thing. Clearly region shifting is a totally valid thing to do and not a violation of copyright by insane ad-troll logic.